Southwest Aviation Specialties, L.L.C. et al v. United States of America et al

Filing 64

OPINION AND ORDER by Chief Judge Claire V Eagan ; denying 61 Motion for New Trial (djh, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

SOUTHWEST AVIATION SPECIALISTS,
LLC, JET CAPITAL, and MIDWEST AIR
EXPRESS, LLC,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
DEPARTMENT OF THE NAVY AND
UNITED STATES MARINE CORPS,
CARDINAL AVIATION, INC.,
CAROLINA CONSTRUCTION
CONSULTANTS, a d/b/a of THOMAS
DAILY, HCC INSURANCE HOLDINGS,
INC., and U.S. SPECIALTY INSURANCE
COMPANY,
Defendants.

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Case No. 10-CV-0089-CVE-TLW

OPINION AND ORDER
Now before the Court is the Motion for New Trial on Behalf of Plaintiff Jet Capital with
Incorporated Brief (Dkt. # 61). Plaintiff Jet Capital (Jet Capital) asks the Court to reconsider its
opinion and order (Dkt. # 47) granting defendants United States of America and Department of the
Navy and United States Marine Corps’s (collectively referred to as the United States) motion for
summary judgment, and it asserts that the Court’s unfamiliarity with Louisiana law resulted in clear
error or manifest injustice. Dkt. # 63, at 2. The United States responds that Jet Capital failed to
raise the arguments asserted in its post-judgment motion in its response to the United States’ motion
for summary judgment, and that the Court should decline to consider arguments that were previously
available but not asserted. Dkt. # 62, at 3-4.

Jet Capital owns a Beechcraft C90 King aircraft, Federal Aviation Administration (FAA)
registration number N21SP (the Aircraft).1 The Aircraft was leased to Cardinal Aviation, Inc.
(Cardinal) and, in the lease agreement, Cardinal assumed the duty to maintain the Aircraft in
compliance with FAA regulations. Cardinal represented that it was owned by Thomas Dailey, and
it took possession of the Aircraft in October 2007. Dailey, doing business as Carolina Construction
Consultants (Carolina), agreed to rent the Aircraft or an acceptable equivalent to the United States
at an hourly rate. On April 25, 2008, the Aircraft left the Baton Rouge Metropolitan Airport under
the control of a United States Marine Corps pilot and landed about an hour later. During the
landing, the Aircraft was damaged when the torque knee of the right main landing gear failed. In
2002, the FAA had issued Airworthiness Directive 2002-01-10 that requires an inspection of the
main landing gear torque knees for fatigue cracks every 1,000 hours time in service if no cracks
were found during an initial inspection.
Jet Capital and other plaintiffs filed this lawsuit to recover money damages for harm to the
Aircraft. In an amended complaint, Jet Capital alleged a claim of negligence per se under the
Federal Tort Claims Act, 28 U.S.C. § 1346 (FTCA), against the United States, and the sole basis for
the claim was that the United States operated the Aircraft in violation of Airworthiness Directive
2002-01-10 and other federal regulations. Dkt. # 22, at 5. No other claims were asserted against
the United States. The United States filed a motion for summary judgment (Dkt. # 35) on the ground
that Louisiana law does not recognize a claim for negligence per se, and that Jet Capital could not
prevail on a FTCA claim without showing that the relevant state law created a duty in tort. In its

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The facts recited in this Opinion and Order are the undisputed facts established by the
summary judgment record and are taken from the Court’s ruling on the United States’
motion for summary judgment. Dkt. # 47, at 2-4.
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response, Jet Capital acknowledged that “no duty under Louisiana law exists,” but it argued that
federal regulations could be used to create a tort duty under Louisiana law. Dkt. # 38, at 3. Jet
Capital did not argue that the United States could be held liable under general negligence or fault
principles under Louisiana law.
The Court granted the United States’ motion for summary judgment, and found that
Louisiana courts did not recognize a claim for negligence per se. Dkt. # 47, at 6. The Court also
stated:
Plaintiff’s amended complaint does not allege a general negligence claim or assert
that the United States breached a duty created by Louisiana law. Instead, the
amended complaint clearly alleges that the basis for the government’s liability is the
alleged violation of FAA regulations.
Id. The Court considered Jet Capital’s argument that Louisiana statutes allowed for reference to
federal law or regulations to create a tort duty, but found no legal support for Jet Capital’s argument.
Id. at 7. Plaintiffs had not served defendants Cardinal or Carolina, and the Court ordered plaintiffs
to show cause why their claims against these parties should not be dismissed under Fed. R. Civ. P.
4(m). Id. at 8. Plaintiffs responded to the Court’s order, but the Court found that they had not
established good cause for their failure to serve these defendants. Dkt. # 53. A final judgment was
entered on November 9, 2011. Dkt. # 54.
Jet Capital filed a timely motion under Fed. R. Civ. P. 59(e), asking the Court to reconsider
its opinion and order granting the United States’ motion for summary judgment. Dkt. # 61. Jet
Capital argues that the Court improperly relied on the label of “negligence per se” used in the
amended complaint, because Louisiana law makes no distinction between negligence and negligence
per se. Instead, Jet Capital now argues that the Court should have applied a “duty/risk analysis”
using general negligence principles. Id. at 2-3, 8. Jet Capital also argues that federal laws or
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regulations may form the basis for a tort duty under Louisiana law, and the Court erred when it
concluded that FAA regulations did not give rise to a tort duty in this case. The United States
responds that Jet Capital is attempting to assert arguments that should have been raised in response
to the motion for summary judgment, and that Jet Capital is barred from raising new arguments in
a post-judgment motion. Dkt. # 62, at 3. It also argues that Jet Capital conceded that no duty under
Louisiana law existed and it may not “side-step the issues presented in the Summary Judgment
Motion and take a ‘second bit at the apple.’” Id. at 4.
Under Rule 59(e), a party may ask a district court to reconsider a summary judgment ruling
when the district court has “misapprehended the facts, a party’s position, or the controlling law.”
Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). “Grounds
warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Reconsideration
is “not available to allow a party to reargue an issue previously addressed by the court when the
reargument merely advances new arguments or supporting facts which were available for
presentation at the time of the original argument.” FDIC v. United Pac. Ins. Co., 152 F.3d 1266,
1272 (10th Cir. 1998) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)).
“A Rule 59(e) motion to reconsider is designed to permit relief in extraordinary circumstances and
not to offer a second bite at the proverbial apple.” Syntroleum Corp. v. Fletcher Int’l, Ltd., 2009
WL 761322 (N.D. Okla. Mar. 19, 2009).
Jet Capital claims that there is a need to correct clear error or manifest injustice, because the
Court was unfamiliar with Louisiana law and the Court “should be afforded the opportunity to

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correct its error with the assistance of and in the light of more adequate briefing.” Dkt. # 63, at 2.
However, Jet Capital’s motion for a new trial attempts to assert new arguments that should been
raised in response to the motion for summary judgment, and it ignores its own concession that
Lousiana law does not create a tort duty against the United States under the facts of this case. The
Court considered the arguments presented in Jet Capital’s response to the motion for summary
judgment, and found that Jet Capital had not established that either Louisiana law or the FTCA
recognized a tort claim based solely on an alleged violation of federal regulations. Dkt. # 47, at 5-7.
The Court did not misapprehend the parties’ arguments or Louisiana law, and Jet Capital does not
cite any authority suggesting that the Court incorrectly decided the issues presented in the motion
for summary judgment. Instead, Jet Capital raises new arguments and cites new authority in an
attempt to assert a general negligence claim that was not alleged in the amended complaint. See
Dkt. # 22. This is clearly not the purpose of a Rule 59 motion.
Even if the Court were to consider Jet Capital’s new arguments, it has still not shown that
the United States breached a tort duty to Jet Capital, and there is no basis to vacate the entry of
judgment if favor of the United States. Jet Capital claims that a lessee has a duty to return a leased
item in the same condition in which it was delivered to the lessee. Dkt. # 61, at 9. This argument
fails for two reasons. First, the case cited by Jet Capital applies Louisiana contract law, and does
not discuss the imposition of a tort duty on a lessee. Phoenix Assocs. Land Syndicate, Inc. v. E.H.
Mitchell & Co., LLC, 970 So. 2d 605, 614-15 (La. Ct. App. 2007). Jet Capital did not assert a
breach of contract claim against the United States, and the cited case is inapplicable. Second, there
was no contract between Jet Capital and the United States, because the United States rented the
Aircraft from Carolina, rather than from Jet Capital, and there was no contractual relationship

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between the parties. Dkt. # 47, at 2. Jet Capital argues that an FTCA claim may be premised on a
violation of federal statute or regulation when the applicable state law allows for consideration of
federal law as the source of a state tort duty. Dkt. # 61, at 6-7 (citing St. Tammany Parish ex rel.
Davis v. Federal Emergency Management Agency, 556 F.3d 307, 317 (5th Cir. 2009)). However,
Jet Capital does not cite a single Louisiana case in which a Louisiana court actually found that a
federal statute or regulation created a duty under state law. Jet Capital’s proposed negligence claim
still rests on Airworthiness Directive 2002-01-10 and other FAA regulations as the source of a tort
duty, and it has not shown that the pilot violated a tort duty under Louisiana law merely by operating
the Aircraft before ensuring compliance with all applicable FAA regulations and Airworthiness
Directives. See Dkt. # 61, at 8-9 (Jet Capital argument that it was negligent to fly the Aircraft if
compliance with Airworthiness Directive 2002-01-10 and other regulations could not be verified
before takeoff). The Court finds no basis to reconsider its opinion and order (Dkt. # 47) granting
the United States’ motion for summary judgment, and Jet Capital’s Rule 59 motion should be
denied.
IT IS THEREFORE ORDERED that the Motion for New Trial on Behalf of Plaintiff Jet
Capital with Incorporated Brief (Dkt. # 61) is denied.
DATED this 19th day of January, 2012.

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